ISLAMABAD: In a major development, the Supreme Court of Pakistan Tuesday ruled that the votes of dissident members of the Parliament (MPs), cast against their parliamentary party’s directives, cannot be counted.
The court, issuing its verdict on the presidential reference seeking the interpretation of Article 63(A) of the Constitution related to defecting lawmakers, said that the law cannot be interpreted in isolation.
The apex court wrapped up the hearing of the reference today, which was filed by President Arif Alvi on March 21. The hearings continued for 58 days since its filing.
In a split decision, three judges — Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib Akhtar — agreed that dissident members’ votes should not be counted.
Meanwhile, Justice Jamal Mandokhail and Justice Mazhar Alam Khan Miankhel disagreed with the verdict.
The SC stated that the first question deals with the “proper approach to be taken to the interpretation and application of Article 63(A) of the Constitution”.
On this, the bench ruled that the “provision cannot be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution”.
“Nor can Article 63(A) be understood and applied from the vantage point of the member who has earned opprobrium and faces legal censure as a defector by reason of his having acted or voted (or abstained from voting) in a manner contrary to what is required of him under clause (1) thereof. Rather, in its true perspective this Article is an expression in the Constitution itself of certain aspects of the fundamental rights that inhere in political parties under clause (2) of Article 17,” said the verdict.
The court said that the two provisions are intertwined. It explained that Article 63(A) acts to “protect, and ensure the continued coherence of, political parties in the legislative arena”. It added that the parties act “are the primary actors” in the parliamentary democracy.
“Political parties are an integral aspect of the bedrock on which our democracy rests. Their destabilisation tends to shake the bedrock, which can potentially put democracy itself in peril,” said the verdict.
The bench also stated that defections can “delegitimise parliamentary democracy itself”, adding that it condemns that act which is a “cancer afflicting the body politic”.
“They cannot be countenanced,” said the verdict.
“It follows that Article 63(A) must be interpreted in a purposive and robust manner, which accords with its spirit and intent. Ideally, the Article should not need to be invoked at all; its mere existence, a brooding presence, should be enough.
Put differently, the true measure of its effectiveness is that no member of a Parliamentary Party ever has to be declared a defector. Article 63(A) should therefore be given that interpretation and application as accords with and is aligned as closely as possible to, the ideal situation.”
The verdict further added that the “pith and substance of Article 63(A) is to enforce the fundamental right of political parties under Article 17 that, in particular in the legislative arena, their cohesion be respected, and protected from unconstitutional and unlawful assaults, encroachments and erosions.
It must, therefore, be interpreted and applied in a broad manner, consistent with fundamental rights. It also follows that if at all there is any conflict between the fundamental rights of the collectivity (i.e., the political party) and an individual member thereof it is the former that must prevail. The first question is answered accordingly.”